MPAA Keeps Wanting To 'Educate' Others, But Why Does It Never Learn Anything Itself?

from the simple-questions dept

Over the past few decades, one thing that's been fairly consistent coming from the legacy entertainment industry is this incredible blind faith in the claim that "if only the public were more educated about copyright law, piracy would go away." This mantra never goes away. This was the stated rationale behind the RIAA's many thousands of lawsuits against individuals. It's been the stated rationale behind programs like six strikes and Hadopi. And it's the reason behind a series of ridiculousschoolpropagandaprograms, the latest of which (which doesn't appear much different from past versions) is being rightfully mocked.

Of course, as we've noted over and over again, there is almost no indication at all the "problem" the industry faces is an education problem. Instead, it appears to be a problem of their own making, in that they refuse to recognize what the public is demanding, and thus are failing to deliver the product properly. Furthermore, this focus on "education" has never been shown to work. Past attempts to educate school kids resulted in kids rolling their eyes and verbally mocking such obvious propaganda. Furthermore, historical attempts at "educating" people not to copy have never worked. And that's because it's never actually been an education problem. Sure, many in the public may not be fully educated on the ins and outs of copyright law. But, that's generally not why they're engaging in unauthorized access to content. They're doing it because they want to see/hear/read/run/play the content, and often that's the most convenient way.

This incredible disconnect by the MPAA is exceptionally clear in the actions the MPAA was taking in its legal fight against IsoHunt, right before the two sides agreed to a silly $110 million settlement that will never be paid. Right before that settlement, TorrentFreak had a great article mainly discussing the MPAA's nearly apoplectic desire to avoid letting the jury hear anything about (the lack of) actual damages arising from IsoHunt. It was an interesting story, though not quite as sensationalistic as the original article suggests. The MPAA is actually legally correct in arguing that one of the key points for having statutory damages is so that the copyright holder doesn't have to go through the process of determining actual damages. I (and many others) have serious problems with the whole concept of statutory damages for this very reason -- because it seems absurd to order incredibly high damages when no actual harm was done -- but that is what the current law is.

That said, I think the story is more interesting because of a few other points. First, the MPAA totally misrepresented the law and what IsoHunt was arguing. The MPAA was correct in noting the nature of statutory damages, but took it out of context concerning that lawsuit. The MPAA would have been correct if IsoHunt was using the effort to research actual damages to try to get out from paying any damages. But it was not. IsoHunt had already lost that part of the lawsuit, and it was clear that the company was going to have to pay something. The question was how much.

IsoHunt was arguing, quite reasonably and well within the law, that in helping the jury determine where in the wider range of statutory damages the award should end up, it would be helpful to look at actual damages. That's perfectly reasonable. As it stands, a jury can award between $750 and $150,000 per infringement. All IsoHunt was arguing is that some showing of actual damages is reasonable for the jury to learn about to determine where in that rather large range the award should fall. That's both within the law and reasonable.

But much more insane and questionable was the MPAA's conduct in trying to pile on many more infringements after the fact. The case itself revolved around a claim of infringement of 44 different movie files, which IsoHunt was found guilty of "inducing." We have serious issues with the idea that a third-party software provider should be found guilty for the actions of its users, but, given that the court has already decided this, the range of statutory damages should clearly be based on those 44 files. Instead, however, at the very last minute, the MPAA added 3,903 more files to the list (3,190 of which are TV shows instead of movies) and said the statutory damages should be calculated on each of those files. That jacked up even the minimum statutory award from $33,000 to $2.96 million. And moved the maximum up from $6.6 million to $592 million. At that rate, $110 million looks like a "bargain."

But -- and this is the important part -- at no point has anyone, including the MPAA, proved in a court that IsoHunt "induced" the infringement of all of those files. In fact, as IsoHunt notes, they barely had any time to process the details of those files. In July, the MPAA suddenly announced that it was adding a bunch of files that weren't reviewed during the trial stage. It then refused to tell IsoHunt what those files were until September 16, when it provided it with a massive list of 4,145 files, barely giving IsoHunt any time at all to review all of those claims to see if they were legit. Furthermore, IsoHunt pointed out that, just in looking through the list and grabbing random samples, it found numerous examples where "the claimed infringement does not match the claimed work."

It should seem obvious that it's a massive abuse of basic due process to try someone over a specific legal infraction, and then only after the fact, at the point where damages are assessed, to magically add in thousands of more alleged infringements, which were never actually reviewed during the trial. And that's especially true in copyright cases, where different files may have different fact patterns and different defenses.

So why is the MPAA doing this? Even the judge in the case is befuddled, but the MPAA has its reason: education.

Even the judge was confused why the MPAA wanted to pile on so many extra files when it was clear that it wouldn't make a difference. The transcript reveals the whole "we want to learn them internet folks" mentality coming from the MPAA's lawyers:

THE COURT: What do you estimate to be the resources of [Defendants]? . . . What do you suspect?

PLAINTIFF’S COUNSEL: Based on our estimate, Your Honor, we believe a couple to a few million dollars would exhaust Mr. Fung's or defendants' ability to pay...

PLAINTIFF’S COUNSEL: A couple to a few million dollars would exhaust defendants' --

THE COURT: Does that mean, like $2 million --

PLAINTIFF’S COUNSEL: Two million dollars to $4 million, $5 million at the most.

THE COURT: So why are you making such a fetish about 2,000 or 3,000 or 10,000 or 100 copyrights?

MR. FABRIZIO: Your Honor, the purpose of statutory damages is not only to seek compensation from the defendants, extraordinarily important purpose is to create -- send a message to other would-be infringers like defendants, and there are thousands of them....
THE COURT: But if you strip him of all his assets -- and you're suggesting that a much lesser number of copyrights would accomplish -- copyright infringements would accomplish that, where is the deterrence by telling the world that you took someone's resources away because of illegal conduct entirely or 50 times over?

But this is how the legacy entertainment industry guys think -- and it (once again) shows how out-of-touch and clueless they are. In the past, they've made this same argument in trying to justify the massive awards courts ordered against Jammie Thomas-Rasset and Joel Tenenbaum. The highly compensated lawyers think that awards of many millions of dollars (or over $100 million against companies like IsoHunt and Limewire) help "educate" people away from such things by scaring them.

But what they don't realize is that this strategy almost certainly backfires badly every single time. That's because the money is too high. To average people making average amounts of money (i.e., not the lawyers the RIAA and MPAA hires, nor the execs from either of those organizations), millions of dollars is not a large number that is scary. It's an inconceivable abstract concept. It's so insane to actually feel unrealistic. It has no deterrent factor, because it's incomprehensible. Your average person doing some random file sharing recognizes that having to pay over a million dollars for such actions is so patently ridiculous that it doesn't even register as being something to be afraid of. It's not realistic.

You don't "educate" people with such high numbers. It's only the money-obsessed RIAA and MPAA that think the higher the number, the scarier the message, and the more effective the education. The reality is quite different. It just makes people respect those organizations less, and find the entire legal effort completely surreal and detached from reality. The RIAA and MPAA have gotten these types of awards before, and it has had no real impact. People continue to access unauthorized content, and new platforms and services (often harder to track down) pop up every single time one of these sites gets shut down.

The MPAA thinks that it has to keep ratcheting up the "education" by seeking ever more ridiculous numbers, but at what point do they realize this doesn't work and has never worked? When the "punishment" seems perfectly absurd to anyone with common sense, and tactics like piling on thousands of extra infringements not mentioned in the trial raise significant questions of due process and fairness, all the MPAA is doing is making sure that people have less respect and less interest in actually paying attention to the details of copyright law, because the MPAA (along with the RIAA) has worked so damn hard to "educate" the world that the punishments associated with copyright law make absolutely no sense.

Re: The deterrence is that those like Kim Dotcom who got over $100 million

1) Stop writing your first half of your sentence as your title, it's annoying.2) Kim made his money by providing the best file locker service and monetizing it well. The MPAA did not write his source code nor did they coin the concept, how did he infringe?3) Drop the signature

Re: Re: The deterrence is that those like Kim Dotcom who got over $100 million

Re: Re: The deterrence is that those like Kim Dotcom who got over $100 million

OOTB loves "the Rich" and surveillance as long as they're using copyright. Since she's never produced anything popular or of value in her media activities, I don't know why she's all over copyright. Improved enforcement won't make her brand of loony BS more popular.

Re: The deterrence is that those like Kim Dotcom who got over $100 million

"MR. FABRIZIO: Your Honor, the purpose of statutory damages is not only to seek compensation from the defendants, extraordinarily important purpose is to create -- send a message to other would-be infringers like defendants, and there are thousands of them...."

Ah, I see. It's the old "shock and awe" strategy...also known as terrorism, though the force employing it would prefer to refer to it as "rapid dominance".

Re:

nope, it's not even that. Statutory damages are there because they were written that way by bought politicos. What Fabrizio is talking about are punitive damages. Statutory damages should not be punitive in nature. EVER.

What statutory damages should be there for is recompense, so they should, ideally, be, are there as a baseline, rather than extraordinarily comical, like those for copyright infringement.

"MPAA Keeps Wanting To 'Educate' Others, But Why Does It Never Learn Anything Itself?"

The whole mainstream movie industry is on drugs. What do you expect from these people. Look at actors, they're always in rehab and they can barely speak clearly which is indicative of many players in that industry. This includes the MPAA and their executives and lobbyists.

Help?

It should seem obvious that it's a massive abuse of basic due process to try someone over a specific legal infraction, and then only after the fact, at the point where damages are assessed, to magically add in thousands of more alleged infringements, which were never actually reviewed during the trial.

Could someone help me out here? I'm assuming the MPAA lawyers didn't get away with this, but it's been a long day and I'm tired and can't work it out from the article...

Either way, never mind "abuse of basic due process", how does this kind of stunt not get them slapped with contempt of court or the verdict reversed or something? IANAL so I was under the impression that a trial is supposed to establish the "facts" as they pertain to guilt or innocence in the matter at hand. How would it ever be considered even worth trying to make extra facts up after the trial is finished and claim victory with them too?

For the MPAA lawyers to think this is even worth trying says to me that the law is way more broken than I'd already thought it was.

Re: Help?

Exactly. I was wondering that too. About the only way I can imagine evidence being introduced like this correctly at pretty much the end-game of a trial is if, say, a civil wrongful death suit was winding up, the discussion of how much the murder owed the family was being discussed, only for the supposed victim to dramatically push the court-room doors open and walk in (like Principle Skinner in an old Simpsons episode, where Bart was accused of murdering him).

I know there is much corruption in the US legal system, but surely evidence just doesn't get introduced this late, does it? Anyone care to chime in?

Re: Re: Help?

As far as I can see, the files were being introduced not as evidence but as a means of influencing the jury to award the maximum damages. In a sane legal system the case would have been immediately thrown out for jury tampering by the plaintiff.

Lets apply the MPAA's logic to speeding problems!

If education works so well at preventing piracy then why aren't we doing the same thing to the equally prevalent crime of speeding on the roads? Over 8/10's of drivers on the highway are going over the speed limit right now in America, and the numbers aren't much different in other countries I'd imagine.

What could we do to educate people to not speed? We put up all these 55 MPH speed limit signs on the highways, and other speed limits on the rest of the roads, yet a big majority of people still go over the speed limit lots of times every day!

Maybe if we forced everyone to stop and watch a video on why speeding is bad whenever they passed a speed limit sign they'd get the message and stop?

Or maybe we need to start giving out harsher penalties, like the MPAA wants for piracy. Like we should start giving out jail time for speeding! Or increase the fines to be more in line with piracy, like $100,000 per each time you speed! And since cops aren't there to catch you every time you speed, we estimate how often you speed when cops aren't around, and add another $50,000 per estimated incident to your fine because of the risk to public safety your speeding is.

Or perhaps we should just simply outlaw cars altogether, unless you pay the government a $100,000 fee to own and drive a car. Oh and just to make sure those people don't speed, we'll also put arbitrary restrictions on the car, like if you go over 50 MPH the car's engine will overheat and the car will break down. Plus your car can only carry up to 300 pounds of passenger weight even though your car has 5 seats, because passengers telling you to speed makes you more likely to speed. If you drive over the weight limit then the government charges you $10,000 per extra pound.

Well I think that copyright education is very important

Most people are generally supportive of the idea of copyright, and I don't think that there's a problem with that, as the idea of copyright is a good thing in that it can be more useful for the public than not having it at all.

But it's only when people are educated about the way that copyright is actually implemented, and they get to hear about and propose other ways that it could be implemented, do we get support for reform. Because almost no one likes copyright law as it currently stands, and we won't get meaningful reform if people aren't made aware of why and how much we need it.

Re: Well I think that copyright education is very important

I had no problem with copyright until I educated myself about it and came to realize how wrong the laws are, how artists have been taken advantage of, and how corporations have essentially stolen a century of culture from the world and locked it up in their vaults. We're only given access to the culture that can turn a profit. The MPAA is to blame for most of this.

Re: Well I think that copyright education is very important

Au contraire, the idea of copyright is an outdated and broken idea. There is no need to grant exclusive control of artistic works to encourage their production. Indeed, there are many problems with trying to encourage production by granting exclusive control:

1) Exclusive control is called "a monopoly" by economists who mostly agree that they are almost always a bad thing (expecting economists to all agree on anything is simply a failure to understand economists :-). Monopolies almost always extract "monopoly rents" and reduce the general well being by reducing economic efficiency.

2) Granting any degree of control over others, by law, is simply a temptation to the control holders to lobby for more control. As there is little direct incentive to individuals to resist small increases in control, the end result is almost certain to be an unbalanced system that acts against the general well-being.

3) As the control granted by copyright is of necessity transferable or assignable, malevolent organization that specialize in the abuse of that control for economic gain will almost inevitably arise and concentrate the works under their own control, again leading to vastly sub-optimal results.

There are probably many more. Also note that these are quite independent of the actual laws that implement the concept, which have plenty of outrageous flaws of their own.

Re: Re: Well I think that copyright education is very important

Well, I'm open to the idea that abolition is the best option, but I'm not yet convinced that reform would lead to a worse overall outcome for the public than having no copyright at all. Let's try reform first, and if that still doesn't work, then we may as well abolish copyright.

Re: Re: Re: Well I think that copyright education is very important

Let's try reform first, and if that still doesn't work, then we may as well abolish copyright.

I used to think that way until I realised that what we started with was pretty much a "reformed" system - and what happened was that it became corrupted by the malevolent beneficiary organisations. I concluded that if we succeeded in reforming the system it wouldn't last very long before it became corrupted again.

Abolition is the only way because it is the only thing that would completely cut the funding of the lobbyists permanently.

Re: Re: you misunderstand...

What they fail to understand is that most people who don't know about copyright, don't much care about copyright.

People who do know about copyright, tend to look into the matter and generally discover:The industry lies. Repeatedly and blatantly.The industry has repeatedly resorted to what is essentially extortion masked as lawsuits.The industry has proven, again repeatedly, that they are willing to cheat both the consumers and clients the "respresent" in order to maximize profits.And the list goes on.

Such people not only come to care even less about copyright, but often grow to outright oppose it.

What they want is for people to just blindly accept their propaganda as truth, but that just not going to happen.

Re:

Most people I know don't care about copyright. Like, at all. Generally they do thing that artists should probably get paid for their work, but that's about as deep as they go into the intricacies of copyright.

The few times they do pay attention to issues surrounding copyright is when some of these big copyright infringement cases make it to the local mass media.

But then, a funny thing happens.

The general response isn't a "Serves them right for breaking the law", it is actually the opposite. It is more of a "What the fuck? Making a kid pay $100.000 for sharing a few songs? That's not right.".

The general population is vastly ignorant on this matter, but I have a feeling that once people start paying attention to copyright issues, the MPAA and RIAA won't exactly get what they expected...

Re: Re:

To average people making average amounts of money (i.e., not the lawyers the RIAA and MPAA hires, nor the execs from either of those organizations), millions of dollars is not a large number that is scary. It's an inconceivable abstract concept. It's so insane to actually feel unrealistic.

It's the same reason that the President laughed off Dr. Evil's demand for 100 billion dollars in 1969.

But much more insane and questionable was the MPAA's conduct in trying to pile on many more infringements after the fact.

Because MPAA doesn't give a shit about its customers and pretends to have the power of a government because, afterall, they fund politicians' campaigns. MPAA also has a fascist mindset on how they do business, being censorship and control their way of life.

I may be mistaken, and it would seem I probably am, but I thought this concept was illegal. I thought there were laws against overly punishing one person to make them an example to others. Doesn't that fall under cruel and unusual punishment?

Re:

The whole idea of using an overly-harsh punishment just to create an example doesn't even work out on its own logic. It has to assume one example is enough and then no one ever misbehaves again. But it doesn't work that way. So every subsequent punishment will have to be equally severe in order to maintain the "example". In this way the "example" punishment quickly becomes the standard response.

Re: Re:

No, not equally severe. More severe, says the "logic". After all, $150,000 didn't stop infringement. Jack it up to $150 MILLION per infringement. Oh yeah, and the death penalty didn't stop it. This means that the US should funnel all their resources into developing a technology that destroys your soul (I'm thinking the machine hooked up to a piece of cake as featured in the Hitchhiker's Guide to the Galaxy).

Noone buys your shit, not because they're illegally downloading it. People aren't buying because IT SUCKS. Movies, TV, Music. 99% of anything you've put out in the last... let's ne nice and say decade.... Sucks. Sucks like a Dyson. Which makes perfect sense, because it explains where all these legacy media windbags get all that hot air.

When you get laws made that aren't what the general public that is to obey them like, you get people that ignore them. Common viewpoint of the average citizen when they are aware of the length of copyright is it's not right. Common viewpoint to statutory damages is that it is so out of tune with their lives as to be meaningless. As such people ignore them and will continue to ignore them until copyright is reformed into something they accept. Making harsher laws does not equate to obeying.

North Korea found this out by making it a death penalty. People just hid their infringing files and continued on. If the death penalty won't stop infringing then certainly fines aren't going to.

Statutory damages for court just as well be called statutory rape. Those that are even aware of that see it that way.

when the entertainment industries stop coming out with crap like 'you didn't buy that movie, you only bought a license for it'. when judges get off their fat, bribed arses and start doing their job instead of just handing out prison sentences to please the entertainment industry bribers.when governments start to respect the people, rather than pissing all over them at every opportunity, then expect to get the people to back them.

Judge got it wrong and MPAA/RIAA need to be executed

The entities known as the MPAA and the RIAA need to be executed, terminated, destroyed to the last molecule.

They are terrorist organizations of the highest caliber only looking to sodomize their customers and rape/pillage the economy so they are the only ones left with money. period.

They don't care about the law, they don't care about the people producing the content (actors, musicians, directors, special-effects artists, gaffers, stunt-people, etc) - they only care about squeezing that last 1 billionth of a percent profit from everything they touch.

The judge got it wrong because the safe-harbor provisions covered the service as the company wasn't making available, the users were.

Looks like it's time to do an in-depth audit of the Judge's family finances and career paths.

'Education' done WRONG

To the average person, there is no real difference between a fine of $1 million, and $100 million. Why? Because both are amounts so high they would never have a chance of paying them back in their lifetime.

So the idea that increasing the penalties would make for greater deterrence is blatantly wrong, as soon as the fine reaches the point where it's impossible to pay, it doesn't matter how much it is, the effect is the same.